« PreviousContinue »
pauper to attend the event of the cause, be quashed. Burrow's Sett. Cus. 191.
The sessions have no authority to make an original order of The outhority removal; for the statutes' giving an appeal against the order oror the femoral, only authorize the sessions to confirm or quash the order.-Thus in the K. v. Bond, Mic. 2 Jac. 2, an order was made at the quarter sessions to remove a pauper to the place of his last settlement; and it was quashed, for the Court held that the sessions could not make an original order of remoral. 2 Shower, 503.
Therefore the sessions have no power to confirm an order of removal, unless it be on an appeal. – Thus in the K. v. Leverington, Tr. 21 & 22 Geo. 2, two justices removed a man and his wife from Sutton St. Mary's to Leverington ; this order was not appealed from ; but the sessions made an order in confirmation of the said original order: this confirmatory or: der was quashed by the court of King's Bench, as being a vos fontary, and as it were extra.judicial act of the sessions to confirm an order that was not complained of; and Sir James Bur: 1989 says, that the very same thing was done in the case of Godalming v. St. Michael's, because the order of sessions confrning the original order was not made upon appeal, for which Jeason it was agreed by the Court and counsel to be a void or. der. Burrow's Sett. Cases, 276.
So in Ea. 9 Will. 3, an order made by two justices of the peace for settliog a poor person, was quashed by the sessions ; barbecause it did not appear that it came before them by way of appeal, without which they have no jurisdiction, this order of sessions was quashed. Salk. 479.
And upon the same principle the sessions, on an appeal from an order of removal, cannot adjudge the pauper's settlement to be in a third parish. Thus in the K. v. Amner, Mic. 8 Will. $, a man was removed from Terrent Keinston to Tirrin Crai. ford; and upon appeal, it appearing that he was last settled at Amner, the sessions discharged Tirrin Crawford, and order. ed him to be removed to Amner.- But BY THE COURT. This Bust be quashed, because this is to make an original. order, which the justices at sessions have no power to do; they might bave reversed the first order, and ordered the party to be cartied back to Terrent Keinston; but they coull not remove the party to Amner, a third parish, which was no ways concerned in the order of appeal; and if they are really chargeable with it, it must be on the complaint of Terrent Keinston to two justices of peace. Salk. 475.
Neither can the sessions, at a subsequent sessions make an order to review a case on which they determined at a preceding sessions.—Thus in the K. v. Cuckfield, Hil. 8 Will. 3, 2 pauper was by order removed from Cuckfield to Bucksteail, and this order being appealed from, was confirmed at the sessions ; but the sessions after that made an order of review, and quashed the former order of sessions, because made by surprise. - But
BY THE COURT. The order of review must be quashed, for the justices have no power after the first sessions. Salk 477.
But the sessions may make a new order vacating a former order, at any time during the same sessions...Thus in St An drew Holborn v. St. Clement Danes, Mic. 3 Ann, the sessions made an order, and afterwards the same sessions vacated it by a subsequerit order, and a certiorari being brought, both orders were returned thereon. ---And by Holt, Ch. J. You should not have returned the vacated order, but only the latter. This is, as if we, disliking our judgment, should the same term make an entry of two difierent judgments, and return both upon a writ of error, which ought not to be: the sessions is all one day, and the justices may alter their judgment at any time while it continues. Salk. 494. . And the sessions may refer the consideration of an appeal with the consent of the parties.... Thus ju the K. v. the Jus. tices of Northampton, Tr. 17 Gro. 3, the sessions referred the consideration of an appeal against a poor rate to three jus. tices out of sessions : this reference was made with the con
sent of the parties : the sessions afterwards adopted the opinion - of the referees, and made an order accordingly. It was moved 'to quash the order of sessions, on this ground that the sessions
had no authority to make such a reference... But by lord Mansfield Ch. J. If they did this of their own accord, with. out the consent of the parties, it cannot be supported: they are not warranted to delegate their authority ; but if they acted with the consent of the parties, I think they hare done very right; and we never suffer the party who consented to the reference, by coming here to set it aside; and i think it sufficient if the attornies consented and attended this reference. Caldecot': Cases, 30.
And if the justices present at sessions are equally divided if opinion, so that no order can be made, they ought to adjoari the appeal, or to continue it over to a subsequent sessions till by the coming of more justices the matter may be decided Thus in the K. v. the Justices of Il'estmoreland, Tr. 8 Geo. 9 upon an appeal to the sessions upon an order of two justice for removing a poor family, the justices were equally divided $0 no determitation was made, nor the appeal adjourned; mandamus was therefore directed to all the justices of th county in general to proceed on the appeal; and it was said that the justices ought in this case to have adjourned ! ? app al, or continued it over to a subsequent session,' till by coming of more justices it might have been determiued. 2 Ses Cas. 193
But if after all, the justices should still continue to be equall divided in opinioo, as may sometimes happen, the proper cour to obtain a final determination of the matter seems to be, f the parties to consent that judgment be pronounced, subject the opinion of the judges of assize, or Court of King's Bend op a special case to be stated for that purpose.
The pauper removed may appeal against the oriler as well as Who may ap. the parish...Thus in the K. v. Hari firla, Eu. 4 IVil & Mar, peal. to justices removed a man from the parish of Hartfild to the parish of Frampfield, from which order the pauper himself and not the parish appealed. It was objected that the party him. sell cannot appeal, becarise the appeal is only given to the parish aggrieved....But BY THE WHOLE Cours. The party may appeal as well as the parish. Carth. 292.
And the order of sessions need not expressly state that it is on the appeal of the parly grieved ; for in the K. v. Alm'ın. bury, Tr. 4 Geo. 1, an order of two justices was quashed at sessions upon appeal, without saying, ut the appeal of the party grieved ; and this was objected, in order to quash the order of sessions, and compared to the case of a complaint that a man is likely to become chargeable; which has been held ill, because the complaint must be by the church wardens and overseers.—THE COURT were inclined to quash the order for this fault, till they were informed the precedents were most of them so ; and for that reason, and that only, as the Ch. J. dedared, the order was confirmed. 1 Strange, 96.
According to the stat. 9 Gro. 1. c. 7 *, w appeal from any Notice of ap: order of removal is to be proceeded upon, unless reasonable peal. Rotice be given by the parish officers who appeal to the parish Oncers of the place from whence the pauper was removed ; and the reasonableness of which notice is to be adjudged by the sessions. Now as all courts have stated rules to go by, it is proper whenever an appeal is made from an order of re. moral to give such notice as the practice of the particular ses. sions to which the appeal is to be male requires,
But although reasonable notice may not have been given, the sessions cannot for this quash the order of removal : it is only a ground for their adjourning the appeal... Thus in Tr. 10 Geo. 1, the sessions quashed an order of justices, and assigned for a reason, that there was not due notice given of the appeal,' pur. suant to the stat, 9 Geo. 1. But BY THE CHURT. The order of sessions must be quashed, because due botice not being given was no reason to quash the order of two justices, though it might be a reason to adjourn the appeal. Foley, 261.
Neither cao the sessions refuse to receive the appeal on the ground that due notice was not given; for the notice relates only to the hearing, and not to the receiving the appeal. Thus in the K. v. the Justices of Gloucestershire, Eu. 19 Gco. 3, on an application for a mandamus to compel the justices of the quarter sessions in Gloucestershire to receive an appeal from ka order of removal, it appeared from the affidavits ou which the role was obtained, that the examination of the pauper was taken in August, the order of removal dated the 12th of November following, and the sessions where the appeal was
tendered, held on the 12th of January, in the ensuing year;
that no notice of appeal had been served'(for which the reason assigned was, that the appellants had not been able to get their witnesses ready till it was too late to give such notice) that the Court had been moved to receive the appeal, and ad journ it till the following sessions, and had refused....Tu Court were clearly opinion that the justices ought to haren ceived the appeal.-.-Mandamus granted. I Doug. Sto. ed. 19
And therefore they are bouud to receive an appeal again an order of removal, although no notice has been given.. Thus in the K. v. Iluntingdonshire, Ea. 23 Geo. 3, upon ar moval of a pauper by an order of two justices, the notice appeal to the quarter sessions was served upon a Sunday had appellants deferred the service of their notice till another da they would not have been in time to have given, under t practice established in that court, reasonable notice to the spondents for the purpose of trying the merits of appeal, The Sessions (being of opinion that the party aggrieved not at any rate or for any purpose entitled to appeal, less the prescribed notice had previously been given to the spondents; and also that a service of a notice upon a Sund not being a legal service, there had not in point of law by any notice) refysed to hear, adjourn, or enter the appeal... mandamus being moved for, to compel the justices to rece and hear the appeal,it was granted, no cause being skewa aga the rule. Cald. Cas. 283.
But although the sessions are bound to roccive the app at the next sessions, yet they are not obliged to adjourn hearing thereof, if they are satisfied that the appellants sufficient time to come prepared to try it, and to give notice the respondents.---Thus in the K. . the justices of North Řiding of Yorkshire, Ea. 29 Geo. 3, a mandamus moved for, to compel the defendants to receive, hear, and termine an appeal against an order of removal. The order made on the 26th of November, and executed on the 28th :appellants attended the next quarter sessions, held on the of 'an. following, and moved the Court for leave to lo • the appeal, and to respite the hearing thereof,' to then next general quarter sessions. The following entry made by the sessions : " For as much as it appears to “ Court that there has been sufficient time since the rem " of the paupers for the appellants to give notice, and “prepared to try this appeal at this sessions, and no a ( shewn why they did not proceed accordingly ; it is ord " that the motion for lodging the same, and respiting “ hearing to the next quarter sessions, be rejected"... COURT were of opinion that the justices had not acted wr fur the motion was iu effect to adjourn the appeal ; and it evidently the intention of the parties not to enter the app unless the Court would adjourn it: the justices are to jd of the reasonableness of the time ; and in some counties
establish a rule, regulatiog the time of notice; here it appears that the order of removal was executed on the 28th of Novem. ber, so that there was sufficient time for the appellants to give notice, and to come prepared to try it; and the justices who are to judge of this thought so... Mandamus refused *. 3 Term liep. 150.
The words of the stat. 8 & 9 Will. 3. C. 30 +, are that the To what ses.. appeal against any order of removal shall be determined at the sions appeal general or quarter sessions for the county, division, or riding, must be nuade. wherein the parish is situated ; therefore the appeal against an order of removal made by corporation justices must be to the county sessions, and not to that of the corporation.... Thus in the K., Il'endover, Ea. 13 Will. 3, two justices of St. Alban's repored a poor person to Wendover. Wendover appealed to the sessions at Sl. Albun's, where the order was confirmed.--.By THE Court. The a peal ought to have been to the sessions of the county, and not of the corporation; and as it was, it was curam non judice. Salk. 490.
Also in the case of Malden, Mic. 11 Ann. it was laid down hy Parker Ch. J. that where there is a town corporate that hath sessions of its uwn, and the justices within that town make an order there, if the parties will appeal, they must appeal to the county sessions, and not to their own sessions, for then there would be an appeal ab eodem ad eundem, there being, it may be, the same justices sitting who made the order. Cas. Sett. & Rem. 10.
So also in the K. v. East Donylund, Tr. 8 Geo, 3, tvo justices of the peace for the borough of Colchester made an order to remove three paupers from St. Giles in Colchester, to East Donyland in Esser; the parish of East Donyland appealed to the quarter sessions of the borough of Colchester, and they confirmed the order, and stated a special case. It was objected, that the sessions had no jurisdiction ; for that the appeal ought to have been to the quarter sessions of the county, and not of the borough. Agaiost this it was urged, that the parish of St. Giles were concluded from making this objection, by their having at this borough quarter sessions,
* So also in the K. v. the Justices of Derlyshire, Mic. Ter. 92 Geo. 3, an act of inclosure having given an appeal to the next sessione within six months after the cause of complaint, an appellant moved the court of sessions in due time to receive his appeal, and respite
the hearing of it till the next sessions' this was refused by the justices, because the following sessions would not happen before the expiration of the six months; a mandamus was moved for to com pel them to receive this appeal; but the above case of the K. v. the Julites of the North Riding of Yorkshire was mentioned, and the Court were clear that the act was compulsory on the justicey to re
ceive the appeal, but not to respite it,' and they said, as this was a conditional motion, only to enter the appeal, in case the sessions
would agree to respite the hearing,' they could not compel the justices to receive it afterwards. 4 Term Rep. 468,
+ See p. 399 supra.